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1866.

HUBBARD

LEES.

legislature has in effect said, “whereas formerly three
witnesses were required to a devise of real estate, and
many powers of appointment by will of real estate were
required to be attested by three witnesses, henceforth two
witnesses only shall be necessary, unless the donor of the
power shall require a greater number." Here the donor
of the power, knowing that two witnesses only are required
for a will, has thought fit to make three witnesses essential
to the due execution of the power by will. West v. Ray (a)
decided that where the donor has made certain required
solemnities essential to the due execution of the power,
the case does not fall within the 10th section of the 7 Wm.
4 & 1 Vict. c. 26. [Bramwell, B.-A power to appoint by
any writing is within the Act, because a writing comprehends
a will; but a power to appoint by any writing under hand
and seal is not within the Act, because a will does not
require a seal.] The statute does not operate to prevent
the donor of a power from requiring whatever solemnities
he may think fit.

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Martin, B.-I am of opinion that this rule ought to be discharged. It is unnecessary to advert to all the matters which have been discussed, because the letter of the defendant brings down the pedigree to John Moore, the grandfather of the plaintiff. It seems to me that, apart from the entries in the Testament, there is distinct evidence of the heirship of the plaintiff to George Hewitt Lander.

But a question has been raised whether the Testament was admissible in evidence. Now, although the case was not submitted to the jury, the evidence was before them, and the rule is that if parties adduce evidence they must stand or fall by it ; if the evidence was not admissible a

(a) Kay, 385.

1866.

HUBBARD

v. LEES.

new trial will be granted; for it is impossible for the Court to say on what particular piece of evidence the jury may have found their verdict. But I am of opinion that this Testament was admissible in evidence. It was proved by a witness to have been in the possession of Fanny Wells, and to have been given by her to her half brother, as her grandfather's book. It came from the proper custody, and there is no ground whatever for saying that it was not admissible in evidence unless the handwriting was proved ; for if the handwriting could be proved there would probably be no occasion to resort to such evidence. It is because the entries are so old that it is impossible to prove the handwriting the Testament becomes evidence. To require proof of the handwriting would be to say that no such document shall be admissible in evidence. Entries in a Bible are in the nature of a record; and if it comes from the proper custody the entries are presumed to have been adopted by relatives cognizant of the facts.

For the same reason, I am also of opinion that the letters were admissible in evidence, for they were documents which came from the custody of a member of the family, and by them the fact is recognised that Ann Lander was the aunt of Fanny Wells.

Then with respect to the question arising upon the execution of the power of appointment, I am clearly of opinion that the case falls within the 10th section of the 7 Wm. 4 & 1 Vict. c. 26. What the legislature meant to

. 4 express by that section is this :-“ We are

aware that powers of appointment may often be exercised by will, and we are also aware that the power must be executed in strict conformity with the instrument which created it; but inconvenience and mischief will probably arise in consequence of the donee of a power supposing that the ceremonies required for the execution of a will are sufficient for the

1866.

HUBBARD

LEES.

execution of a power by will; we therefore enact that
henceforth, whenever a power may be executed by will, it
shall be sufficient if executed in the manner required for a
will by this Act, although some additional form or cere-
mony is required by the instrument which created the
power.” That is the plain meaning of the 10th section,
and its effect is that mere matter of form, so far as practi-
cable, is dispensed with. There is nothing whatever in our
judgment which in the slightest degree conflicts with the
decision in West v. Ray.

For these reasons I am of opinion that there is no
ground for a new trial either upon that point or the
others which have been discussed, and that the rule must
be discharged.

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BRAMWELL, B.-I am entirely of the same opinion. The only observation which I think it is necessary to make is as to the letters. It is argued that the effect of our decision will be that the bare preservation of any letter or document by any person will be equivalent to a declaration by that person of the truth of every statement contained in it. But we do not lay down any such general proposition. These letters have no circumstances of suspicion about them. They are addressed to a relative, and contain statements with respect to the family; and I think that the fact of such relative having received and preserved them is some evidence of relationship, that is, that Ann Lander was the aunt of Fanny Wells.

Rule discharged.

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1866.

verdict and

the time pre

а

KRAMER v. WAYMARK.

May 1. M. CHAMBERS, on a former day in this Term, had an action for obtained a rule calling on the plaintiffs (sic) to shew cause injuries is

personal why, upon payment by the defendant of the costs of the 15 & 16 Vict.

within trial, and costs since incurred in this action, all further c. 76, s. 139.

.

Therefore, proceedings should not be stayed, or why a new trial where the

in should not be had on the ground of the death of the such an action plaintiff since the trial and before judgment signed.

judgment, This was an action on the case by an infant (seven years "Held, that

judgment old), suing by his next friend, for severe injuries to the signed within head, eye and face, from the kick of a horse of the defend- seribed by ant. The injuries were sustained on the 4th of July, was regular.

. 1865. The trial took place before Erle, C. J., on the 28th of March, 1866, at the Surrey Spring Assizes, when trial, although

the damages medical evidence was adduced shewing that, besides the would pro

bably have external injuries, there was injury to the brain, and that, been less if the if the child lived, it would, in all probability, be incapaci- the plaintiff's

proximity of tated for work. The jury found a verdict for the plaintiff, been foreseen. damages 150. On the 6th of April, 1866, the child died from the effect of the injuries. The next friend, having signed judgment, the defendant's attorney, on attending the appointment for taxation of costs, applied to the Master not to tax pending an application to the Court, and the taxation had accordingly stood over for this application.

The Court refused a new

death had

Murphy now shewed cause.- First, the Court will not stay proceedings if error could not be alleged. Here it could not, since judgment has been signed within the time

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prescribed by the 17 Car. 2, c. 8, s. 1 (a), and the 15 & 16 Vict. c. 76, s. 139 (6). It will be argued, no donbt, that the operation of these enactments is confined to such causes of action as would survive to the representatives of the deceased. But, the language of the legislature being perfectly general, there is nothing to warrant so restricted an interpretation. Upon the construction of the 17 Car. 2, c. 8, s. 1, there are two authorities, but they are directly in conflict. In Ireland v. Champneys (c) it was held by the Court of Common Pleas that final judgment entered up in an action of libel after the death of the plaintiff was irregular, the Court holding that the case was not within the statute. But in the later case of Palmer v. Cohen (d), the plaintiff having died between verdict and judgment, it was expressly decided that the statute applied to an action of libel, and the Court refused to set aside a judgment entered up by the executor. [Bramwell, B.-After the decision in Palmer v. Cohen (d) I do not see how we can stay proceedings. The defendant, if so advised, must bring error.] Secondly, as to the new trial. [Bramwell, B.-If the event had been foreseen, there would have been smaller damages.] Damages having been fairly assessed on a balance of events, what has since occurred affords no ground for interference.

M. Chambers (Beasley with him), in support of the rule.

(a) The 17 Car. 2, c. 8, s. 1, enacts :—“For the avoiding of unnecessary suits and delays, &c : That in all actions, personal, real or mixt, the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict.

(6) The 15 & 16 Vict. c. 76, s. 139, enacts :-" The death of either party between the verdict and the judgment shall not hereafter be alleged as error, so as such judgment be entered within two terms after such verdict.

(c) 4 Taunt. 884.
(d) 2 B. & Ad. 966.

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